ABC apologises

NINE months after broadcasting an offensive skit featuring The Australian’s columnist Chris Kenny by The Chaser team, the ABC will tonight issue a comprehensive on-air apology as part of a formal defamation settlement that includes paying all legal costs and some damages. Despite the ABC and The Chaser team vowing to contest the matter in court, backed by an internal review that found the skit met editorial standards for satire, the apology will tonight be broadcast on ABC1 at about 9pm, before the Jonah From Tonga show.
…
Kenny said he decided to sue the ABC, production company Giant Dwarf and its presenter ­Andrew Hansen for defamation because of the offensive nature of the skit, and its subsequent damage to his reputation, but also ­because he considered it an ­attempt to silence him.

“I was singled out because I’ve been a critic of the ABC and it was an attempt to silence me,’’ he said.

“People have suggested to me it’s anti-free speech to launch a defamation action, well I think it’s quite the opposite in this case. I was singled out because I dared to criticise the ABC and it (the skit) was an attempt to intimidate people out of criticising the ABC.”

Responding to criticism that journalists should not pursue law suits and commentary that satire should be exempt from defamation, Kenny said he did not “take legal action lightly but in the end you have to draw a line”.

“They can mock me, they can tease me, they can find examples to ridicule me with all they like but somewhere there has to be a line,’’ he said.

“I accept that the line is grey, but I think this case was so ­obviously beyond the pale that nobody would disagree.”

This whole incident reflects very poorly on the ABC – from the initial decision to broadcast the material, to the decision to brazen out any criticism, then the attempt to monster Chris Kenny into dropping the action in the last fortnight.

In Bolt’s case, 18C defined the unlawful act, and the court punished him with a guilty conviction.

In Andrew Bolt’s case, I cannot see why some one should be punished just because they ‘hurt some ones feelings’. what ever Andrew said must have hit pretty close to the mark. Why did ‘hurt feelings’ become punishable by law?

Part of the settlement (IIRC) was that the Chaser ‘boys’ (average age 38 and a half and climbing) not speak publicly about the matter (a la the picture ‘young’ Jules tweeted after Nice Mr Scott’s first apology).

Again this is wrong. A crime is a wrong punishable by the State, and here it is the Court that is granting a remedy in the form of an injunction. Bolt was not convicted of anything and the Court passed no sentence.

RACIAL DISCRIMINATION ACT 1975 – SECT 18C
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

Bromberg J’s relief was that Bolt and his employer should not republish the articles and print, but, in effect, publish an apology, or at least, given Bromberg’s dislike for an apology, a description of the Court’s findings.

The issue of whether this Judgment made Bolt’s actions unlawful or criminal would I suggest lie in the ramifications for Bolt if compliance with the orders made by Bromberg J was not done. In that instance, at the very least, a variety of impositions from fines, running or otherwise and imprisonment for Contempt could occur. So while it is true the findings against Bolt were not criminal in the accepted sense of a record and initial penalty, criminality would accrue to non-compliance; something which usually does not follow civil proceedings.

In short 18C is a hybrid, a half-way between civil and criminal proceedings, and while Bolt has perhaps overestimated the consequences of him revisiting the issues [ie he cannot reprint the original articles but Bromberg J was at pains to say he was not barred from revisiting the issues] the potential consequences should not be underestimated: contempt is a broad Judicial weapon.

cohenite
#1333740, posted on June 4, 2014 at 9:25 pm
[...]
In short 18C is a hybrid, a half-way between civil and criminal proceedings

No it’s not. The remedies are the same as in civil proceedings (in this case an injunction), and so are the consequences of ignoring the orders of the court. This is like saying ‘the law of contract is half-way between civil and criminal proceedings’ because if you ignore an order for specific performance you will be jailed for contempt. I support the repeal of the act in its entirety, but let’s not over-egg the pudding.

If you want to get outraged, try looking up the Racial and Religious Tolerance Act 2001 (Vic) ss. 24-5.

Personally I hope if it had gone to court it would have been chucked out. If that was defamatory then nearly every comment I make should see Catallaxy sued.

I think there may be more general support for reform to the RDA if changes to defamation laws were rolled in as well as a general sort of consistency thing. There seems to be quite a bit of overlap in terms of offense, protection for satire etc. My understanding is that the RDA is a much easier route if you don’t have money but happen to fall under its coverage. Defamation on the other hand is a much bigger threat it you don’t have the funds to defend yourself and not usable if you are defamed if you can’t fund the court case.

Anyway Kenny is getting a double dose of the Streisand effect tonight and he’ll probably spend the next few years trying to correct his Wikipedia page. Without the defamation action it’s very likely hardly anyone would have remembered what had happened by now – just a forgotten memory of an extremely juvenile segment on a show known for its school age humour.

Broadcasting something on national television, with the imprimatur of the government’s national broadcaster, is not the same as posting a snarky comment on a blog read by a few thousand people each day.

Part of the settlement (IIRC) was that the Chaser ‘boys’ (average age 38 and a half and climbing) not speak publicly about the matter (a la the picture ‘young’ Jules tweeted after Nice Mr Scott’s first apology).

As others have noted, The Chaser “boys” are defying the terms of the agreement.

Chaser’s Chris Taylor posted on Facebook: “Just to be clear. The Chaser team is not apologising, and will never apologise to Chris Kenny. Tonight’s on-air apology is from the ABC, not us.”

If they were fighting a noble fight I would applaud…but they aren’t. They are simply standing up for their repulsive insult of someone who criticised the ABC. They are slime.

Kenny is suing the ABC, Giant Dwarf productions and presenter Andrew Hansen for an episode of The Hamster Wheel in which it depicted him having sex with a dog.

Easy-peasy.
As the ABC has settled, Mr Kenny need only continue suing Giant Dwarf Productions and Andrew Hansen. However it will be interesting to see whether the ABC reacts to this puerile attempt to undermine the settlement it has made. I guess Mark Scott doesn’t have the balls to terminate further use of the Chaser “team” and their production company.

Cold-Hands +1
Will be interesting to see if Giant Dwarf Productions and Andrew Hansen are cut loose from the ABC. Or may be they figure they are untouchable. May be they have ensured that Giant Dwarf Pty Ltd ACN: 144586747 has no assets and the bank account has been left intentionally dry and they can then forge themselves into victim-hood claiming that Chris Kenny and his horrible nasty followers killed their business.

Court cases like this are crap and time wasters but experience has taught me, harshly, that some times standing up to be counted is the only way.

What you said was that defamation was an unwarranted intrusion into the rights of free speech as it is the nanny state deciding what people can an cannot say.

You have a remarkable way of focusing on the irrelevant aspects of a point.

Was the nanny state as we generally understand it around when defamation law came into existence? No. What difference to my point does it make.
Technically the ‘nanny state’ became involved in the lives of its citizens when the Ecclesiastical Courts (vested with the authority of the crown) handled claims against reputation. Originally the penalty of penance was handed down – no pecuniary penalty was available.
The common law prior originally considered words as un-actionable.
This changed – and a reputation (how others perceive us) became a form of property. Sovereign power inserted itself into the lives of citizens to put restrictions on what could and couldn’t be said.
Now none from 1300 is here to blame. Does this mean that we’re stuck with what some judges came up with hundreds of years ago? Of course not.
The common law is regularly modified or reaffirmed. Since sovereign power while technically still lying with the Crown, is in reality with the people this means that the role of government is being restated or reaffirmed continuously.
Take the Libel Act 1847 (NSW). Before either of us were born, the legislative in NSW had already modified the common law to the extent it wanted and combined slander and libel (a departure from the common law). They could have departed further from the common law by recognising that there shouldn’t be any restrictions on speech. They chose not to. With the uniform defamation laws in 2005, the state could have gotten itself out of speech. There was no push for this to happen. People still think that it is an appropriate role of the state to enforce judgments which compensate others for perceived damages to their reputation by words. An artificial construct still reaffirms a reputation as property.
So how are s18C and defamation law related? S18C puts restrictions on what we can say. Defamation law artificially makes a reputation the property of the person whose reputation is allegedly affected. Both are intrusions of the sovereign power of the people into what can and can’t be said and are therefore restrictions on free speech.

I brushed over your link to Candide – ok it’s a novel by Voltaire. I don’t have time to read it. If you can’t make your point without someone having to read a novel, one would question whether you have a point to make at all.

Well – the ABC’s bedmate, SBS, had no problem at all in regarding the “apology” and the reason for it as nothing serious at all. Chris Kenny’s lawyers might want to view Part 1 of last night’s episode ofThe Feed, shown at 7.30pm and this morning at 12.20am, and freely viewable at SBS On Demand. They could easily be inclined to ask SBS if it also would like to apologise and/or compensate their client.

Joe, you are stating an interpretation of the situation which differs from both history and practice. It is also your own unique interpretation, which most here disagree with.

Where have I heard before arguments appealing to consensus… come on, that’s lazy.

The court, established by the Government but separate from it, adjudicates and reaches a decision.

The separation of powers is an artificial construct. It only exists so long as there is a desire within the wider population for it to exist. Since governments appoint judges, can make executive orders or can restrict through legislation the discretion granted to judges it becomes a bit of a moot point. Boiled down my argument is basically saying that all forms of government and branches represent the sovereign power of the people as manifested in the majority. Right or wrong, that’s the structure of society. In that light the constitution and the processes that separate powers are only relevant so long as the population considers them relevant.

This is not a government action against free speech. Any interpretation, or suggestion, that it is, is wrong. The right to free speech is not absolute, nor should it be.

That’s your opinion – fine. You’re not a fan of free speech. I wish you didn’t want to restrict what other people say but you presumably have your reasons.A person’s reputation, especially for someone in public life, is a valuable commodity, like a brand or trademark and they are entitled to protect it.

So you think that people own how others perceive them.
If people incorrectly think someone is a fraud (without it being said by others), that would also be injurious to a persons business. Should the business owner be compensated by those mistaken people? If not, why not. Why would he own their perception in a defamation sense if someone else said it, but not in the instance where they defame his reputation themselves, to themselves. What breaks the nexus of property ownership other than some arbitrary line made up hundreds of years ago.

That’s your opinion – fine. You’re not a fan of free speech. I wish you didn’t want to restrict what other people say but you presumably have your reasons.

Joe, you are an idiot and I have no intention of engaging with you further. You twist what people say, claim they said things they have not said, and act as if your opinion is somehow better than anyone else’s.

Worked out yet that Shakespeare’s chosen vessel to convey the ‘world’s greatest justification for the law of defamation’ was a scoundrel who spent all his time undermining the reputations of those around him , murdered his employer and said those words in the context of attempting to trick Othello into believing that his wife was being unfaithful with Cassio? Othello believing the lie then goes on to kill his wife and himself after finding out later it was all a deception. So yes, when Shakespeare gave Iago the lines you quote in support of defamation law, he was really agreeing with you and not letting the audience share in the stupidity of believing the unsubstantiated allegations of others. Perhaps this iswhat happens when one googles quotes on ‘reputation’ to make a point?

Since being ignored by you conflicts with no interests of mine, I offer my full support to you in that endeavour.

Foucault said that Derrida practiced the method of obscurantisme terroriste (terrorism of obscurantism). We were speaking French. And I said, “What the hell do you mean by that?” And he said, “He writes so obscurely you can’t tell what he’s saying, that’s the obscurantism part, and then when you criticize him, he can always say, ‘You didn’t understand me; you’re an idiot.’ That’s the terrorism part.”

Tell us again how the common law is an interference of government in the liberty of the citizen

So you’re arguing that judges employing sovereign power hundreds of years ago to decide matters between citizens, is not interference by government when sovereignty now vests with the people and they decide to keep the same hundreds of years old framework but modify it when they want interference to be different through legislation?

Tell us again how the common law is an interference of government in the liberty of the citizen

So you’re arguing that judges employing sovereign power hundreds of years ago to decide matters between citizens, is not interference by government [...]

‘Employing sovereign power’? Did somebody repeal the state and federal constitutions while I was away? ‘Hundreds of years ago’? I get it; past and present exist in a singularity. The rest is just as stupid and irrelevant. You are an ahistorical dumbass. F-.

.
#1334565, posted on June 5, 2014 at 1:28 pm
Judges never employed sovereign power. Their decisions could always be appealed.

The king was the font of justice. Hence appeals to the PC and equity.

Wait, I thought that Joe was a legally legal expert who knows all about equity and Blackstone? Surely he understands, being a student of history, that equity was the jurisdiction ameliorative of the common law exercised by the King, and then by the Lord Chancellor as the King’s representative? I wonder why the King could not change or ignore the common law at will, and instead had to exercise a parallel jurisdiction to deal with its deficiencies?

You say a lot of words, but nowhere have you actually refuted the fundamental point that sovereign power resides in the people, has done so for a long time and all branches of government are manifestations of this sovereignty.

You say a lot of words, but nowhere have you actually refuted the fundamental point that sovereign power resides in the people, has done so for a long time and all branches of government are manifestations of this sovereignty.

You say a lot of words, but nowhere have you actually refuted the fundamental point that sovereign power resides in the people, has done so for a long time and all branches of government are manifestations of this sovereignty.

But, as an example as to why no democracy has ever voted down the right to free speech in a direct referendum, your answer was North Korea.

You say a lot of words, but nowhere have you actually refuted the fundamental point that sovereign power resides in the people, has done so for a long time and all branches of government are manifestations of this sovereignty.

But, as an example as to why no democracy has ever voted down the right to free speech in a direct referendum, your answer was North Korea.

I’m beginning to think you’re illiterate or unhinged, Goodacre.

So, to summarise, the judgment of any court of law is an interference with the liberty of the citizen by the sovereign. Now, here’s where it gets opaque, but the reasons that the judiciary constitutes the sovereign seem to be:

1) sovereignty, in a democracy lies in the people; and
2) the government can abrogate the common law; or
3) the government can appoint judges; so
4) the judiciary are the sovereign.

In any event it is argued that the historical development of the common law was, and continues to be, an example of the ‘nanny state’ interfering with the liberty of the citizen. It is not clear that this is the case for public law, but it is certainly argued that this is the case for private law.

So the ‘sovereign’ in this case are the voting citizens.

Of course, the superior courts are a creature of the various constitutions, and exist independent of the ‘sovereign’. Why is it that the High Court argued in Kirk v Industrial Relations Commission (2010) 239 CLR 531 that the privative clause in the Industrial Relations Act 1996 (NSW) was an invalid attempt by the legislature to deprive the State Supreme Court of its supervisory jurisdiction? I thought the judiciary were the sovereign were the people?

You’re arguing the absence of a country having a referendum to remove free speech is evidence of their being support for it. I think – this point was made awhile ago now – correct my if I’ve restated your point incorrectly.

My use of North Korea was to demonstrate an example of a country that had no referendum on free speech but clearly had none – i.e. so what there is no referendum on free speech, it’s a poor test of whether there’s free speech or not.

The judgment of any court of law is an interference with the liberty of the citizen by the sovereign.
Agreed.

the judiciary constitutes the sovereign seem to be:

1) sovereignty, in a democracy lies in the people;

Agreed.

2) the government can abrogate the common law;;

The government are vested with one part of sovereignty of the people – they can modify the common law as they please through this mechanism.

3) the government can appoint judges; so
4) the judiciary are the sovereign.

The people vest power in the government and the courts.
All people who draw a check paid for by taxpayers are agents of the sovereign power of the people – the legislature to create laws, the executive to implement them and the courts to interpret them and to decide when they have been broken.In any event it is argued that the historical development of the common law was, and continues to be, an example of the ‘nanny state’ interfering with the liberty of the citizen.
When the common law was developed, sovereign power was previously in the monarchy. Judges were agents of the King, responsible for dispensing justice to the commoners (hence common law).
The King at that time was ‘the state’. Whether it was a ‘nanny’ state is an adjective referring to the paternalistic nature. When the King’s agents made laws making a person’s reputation property and damage to that actionable, the King was interfering in the lives of people – protecting them from words (which is a paternalistic or nanny interference).
When sovereignty moved from the crown to the people hundreds of years ago, the people had the choice of accepting or modifying previous decisions made by agents of the king (the common law). Some parts they kept it unchanged. Others they modified it. In all cases now though, the common law is part of the framework adopted by the sovereign power of the people.

Of course, the superior courts are a creature of the various constitutions, and exist independent of the ‘sovereign’. Why is it that the High Court argued in Kirk v Industrial Relations Commission (2010) 239 CLR 531 that the privative clause in the Industrial Relations Act 1996 (NSW) was an invalid attempt by the legislature to deprive the State Supreme Court of its supervisory jurisdiction? I thought the judiciary were the sovereign were the people?
At the end of the day all these people are receiving pay cheques from taxpayers.
Just because the people may vest different sovereignty with different parts of government in order to ensure that no one part of their vested power is abused, doesn’t change the fact that they are all government, all the state and all representative of the sovereign power of the people.

Of course, the superior courts are a creature of the various constitutions, and exist independent of the ‘sovereign’. Why is it that the High Court argued in Kirk v Industrial Relations Commission (2010) 239 CLR 531 that the privative clause in the Industrial Relations Act 1996 (NSW) was an invalid attempt by the legislature to deprive the State Supreme Court of its supervisory jurisdiction? I thought the judiciary were the sovereign were the people?

My use of North Korea was to demonstrate an example of a country that had no referendum on free speech but clearly had none – i.e. so what there is no referendum on free speech, it’s a poor test of whether there’s free speech or not.

It proves you approve of oppression. This is why you trivialise s18C, the loss of unanimous jury verdicts etc.

Joe Goodacre
#1334761, posted on June 5, 2014 at 3:50 pm
[...]
When the King’s agents made laws making a person’s reputation property and damage to that actionable, the King was interfering in the lives of people – protecting them from words (which is a paternalistic or nanny interference).

While I’m going to largely ignore this steaming pile of linguistic bullshit, this needs to be corrected yet again, because the first dozen times were not enough. Why don’t you fucking listen and learn you imbecile?

The action on the case developed to protect the pecuniary interest that an individual had in their reputation. Two very early examples are Woode v Frogge (1517) KB 27/1022 where a barrister recovered £40 for clients lost when he was falsely accused by another of treason and murder, and Haukyn v Lyncoln (1525) KB 27/1055 where an innkeeper recovered £5 for a loss of custom after he was falsely accused of murder.

The action on the case developed to protect the pecuniary interest that an individual had in their reputation. Two very early examples are Woode v Frogge (1517) KB 27/1022 where a barrister recovered £40 for clients lost when he was falsely accused by another of treason and murder, and Haukyn v Lyncoln (1525) KB 27/1055 where an innkeeper recovered £5 for a loss of custom after he was falsely accused of murder.

You’re missing the bleeding obvious point that it was an agent of sovereign power that granted the action in both those cases, and the action was based upon the a legal fiction that anyone can have a pecuniary interest in how others perceive them (i.e. own their thoughts).

If you took him at his word in this thread you’d think he was an anarchist; the common law being an imposition on the liberty of the citizen and all. That’s unless you remember that he supports drug prohibition.

…and gun control
…and majority jury verdicts
…and the reclamation of civil liberties only after the end of all welfare and Australia is born again
…and that a government broadcaster being biased and broadcasting defamatory propaganda isn’t oppressive
…and that if libertarians actually push their agenda, it will lead to more socialism